E-TIPS

Bill C-14, An Act to amend the Criminal Code and other Acts (the Amending Act), received Royal Assent on April 22, 2004. Among the amendments are exemptions added to the Criminal Code (the Code) and Financial Administration Act (FAA) relating to the servicing and security enhancement of computer systems.

A US District Court in Florida has ruled that a Florida company's data harvesting of a rival company's web site does not constitute copyright infringement. The case was brought by Nautical Solutions Marketing (NSM), which owns and operates the Yachtbroker.com web site. NSM sought a declaration that its harvesting activities did not infringe the copyright of Boats.com, the operator and owner of a rival yacht listing web site, Yachtworld.com.

The Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) establishes rules that govern the collection, use and disclosure of personal information in the course of commercial activity. The general rule of the statute is that when disclosing personal information, an organization must first obtain the individual's consent.

The US Federal Trade Commission (FTC) used a combination of high- and low-tech investigative techniques to collect evidence in support of the first criminal complaints under the new CAN-SPAM Act, which came into effect on January 1, 2004. The FTC filed the complaints against Phoenix Avatar, a company operating in the Detroit area, and Global Web Promotions, a company operating from Australia and New Zealand, for sending millions of allegedly deceptive messages. In both cases, the companies advertised and sold an allegedly fraudulent diet patch for weight loss purposes.

On May 8, 2004, the Treasury Board Secretariat published the Secure Electronic Signature Regulations under the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Canada Evidence Act.

© 2004, Deeth Williams Wal LLP. All Rights Reserved. By: Heather Watts (April 30, 2004) The predecessor to Bill C-9 - An Act to amend the Patent Act and the Food and Drugs Act (Bill C-56), was introduced to the 2nd session of the 37th Parliament in the fall of 2003.

The Canadian federal government has removed a controversial provision of Bill C-9, the proposed legislation to amend the Patent Act allowing the export of cheaper versions of patented drugs to poor countries struggling to cope with AIDS, malaria, tuberculosis and other health crises. On April 20, 2004, a clause was removed that would have given brand-name pharmaceutical companies the "right of first refusal", allowing them the first chance to fill shipment contracts arranged by generic companies. For a note on the genesis of the legislation, see an earlier issue of E-TIPSâ„¢, (Vol 2 No 9 October 9, 2003).

With the marine recreational season just around the corner, Canadian boaters could literally face uncharted waters. Most boaters use marine charts, which act like road maps, to navigate coastal waters. Although many of the charts remain paper-based, a growing number have become electronic. However, the use of certain electronic charts may be illegal.

Maryland has become the first US state to draft an anti-spamming law intended to work in conjunction with the US federal CAN-SPAM Act that came into effect January 1, 2004.

In a previous issue of E-TIPSâ„¢ (Vol 2 No 9 October 9, 2003), the Grill Gear decision was noted in which the Federal Court of Canada, Trial Division, found that when considering descriptiveness of a design mark, both the word component and the design features must be looked at as a whole. In that case the Court held that, as a design mark, it was not accurate to say that, when "sounded", the mark was clearly descriptive of the wares.

National Academies, a private umbrella organization for providing advice to the US government and the general public, recently published its report on the US Patent system entitled: A Patent System for the 21st Century.

As noted in the preceding issue of E-TIPSâ„¢ (Vol 2 No 22 April 14, 2004), several pharmaceutical companies are taking steps to choke off the cross-border flow of cheaper medicines from Canadian Internet pharmacies to consumers in the US. Supplies to some Canadian wholesalers are reported to have been restricted where the wholesalers have continued to facilitate US exports via Internet ordering.

As anticipated by many commentators, the Canadian federal government has formally exempted from the scope of its comprehensive private sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), the collection, use or disclosure of personal information that occurs within the provinces of Alberta or British Columbia by organizations, other than a "federal work, undertaking or business", to which either the Personal Information Protection Act, SA 2003, c P-6.5 (Alberta) or the Personal Information Protection Act, SBC 2003, c 63 (British Columbia) applies. This follows from the federal government's finding that the provisions of the legislation in these two provinces are "substantially similar" to those of PIPEDA. (Such an exemption has already been granted regarding comparable legislation in Quebec).

In a case concerning Internet defamation, the BC Supreme Court ruled that the British Columbia Federation of Foster Parents Association (the Federation) acted reasonably in responding to defamatory material posted to a chat room on its web site.

New regulations expected to take effect May 1, 2004 under European Union competition laws may complicate technology licensing in Europe. The European Technology Transfer Block Exemption Regulation (TTBER) provides a blanket exemption from EU competition law for patent, know-how and software copyright licenses that meet certain specified criteria. However, changes in the Regulations may make it more difficult to know in advance which license terms will be permitted.

As reported in the E-Tips Special Report (Vol 2, No 21, March 31, 2004), the Federal Court of Canada dismissed the Canadian Recording Industry Association's (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who allegedly traded music on the Internet.In reaching its decision, the Court made three key findings:

On March 24, 2004, a WTO panel made its interim finding that the twin island nation of Antigua and Barbuda (population 67,000) was successful in its complaint against the United States: "United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services" (WT/DS285). The complaint alleged that US federal and state legislation making it an offence for US banks to process online gambling transactions violates the General Agreement on the Trade of Service (GATS). Such US legislation effectively prohibits all supply of gambling services from outside the US, even though US companies carry on gambling businesses both domestically and internationally. In effect, argued the successful complainant, the US had engaged in anti-competitive protectionism of its domestically-owned gambling industry.

While the importation of drugs via Canadian Internet pharmacies remains an issue hotly debated in the US by federal and State governments, individual US residents continue to purchase prescription drugs from these pharmacies. Not surprisingly, therefore, pharmaceutical companies are taking steps to constrain this cross-border activity.

Almost a year ago, Internet service providers Microsoft, AOL, and Yahoo formed the Anti-Spam Technical Alliance (APTA) and undertook to develop technical standards and guidelines that would work for any software or hardware systems in the fight against spam. These ISPs, together with Earthlink, were in the news recently for launching their first joint legal attack against bulk e-mailers under the US Can-Spam Act, see E-TIPSâ„¢ (Vol 2, No 21, March 31, 2004). However, a technical solution may be more effective than a legal one to combat the continuing flood of spam which, it is estimated, makes up 50 to 90 per cent of all e-mail and costs US companies $1 billion per year in security, human resources and productivity.

© 2004, Deeth Williams Wall. All Rights Reserved By: Colin Adams, Student at Law (April 14, 2004) As reported in the E-Tips Special Report (Vol 2, No 21, March 31, 2004), the Federal Court of Canada dismissed the Canadian Recording Industry Association's (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who allegedly traded music on the Internet.